WORKING DRAFT – October 15, 2010

WORKING DRAFT – October 15, 2010

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NOTE: In the spirit of Governor Chris Christie's Executive Order No. 2, this document is provided as a DRAFT of the proposed rule text for an electronics waste management program rules proposal. Comments will be accepted through Monday, November 15, 2010 [email protected] The Department subsequently will submit its official rules proposal for publication in the New Jersey Register, triggering the 60-day public comment period and any public hearings. This pre-proposed rules comment period is in addition to, not in place of, that 60-day period.

ENVIRONMENTAL PROTECTION CLIMATE AND ENVIRONMENTAL MANAGEMENT SOLID AND HAZARDOUS WASTE MANAGEMENT PROGRAM COMPLIANCE AND ENFORCEMENT DIVISION OF COUNTY ENVIRONMENTAL AND WASTE ENFORCEMENT

Electronic Waste Management Rules

Proposed Amendments: N.J.A.C. 7:26-2.8(s), N.J.A.C. 7:26A-1.1, and 1.3

Proposed New Rules: N.J.A.C. 7:26A-13

Authorized By: Bob Martin, Commissioner

Department of Environmental Protection

Authority: 13:1B-3, 13:1D-1 et seq., 13:1D-125 et seq., N.J.S.A.

13:1E-1 et seq., 13:1E-9, 13:1E-99.94 et seq., 26:2C-1 et

seq., 47:1A-1 et seq., 58:10-23.11 and 58:10A-1 et seq.

Calendar Reference: See summary below for explanation of exception to calendar

requirement.

DEP Docket No:

Proposal Number: PRN 2010-_______________


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Full text of the proposal follows (additions indicated in boldface thus; deletions

indicated in brackets [thus]):

CHAPTER 26. SOLID WASTE

SUBCHAPTER 2. DISPOSAL

7:26-2.8 Registration and general prohibitions

(a) – (r) (No change.)

(s) On and after January 1, 2011, no person shall knowingly dispose of a used

covered electronic device, as defined at N.J.A.C. 7:26A-13.2, or any of its

components or subassemblies, as solid waste. A used covered electronic device shall

be recycled in accordance with N.J.A.C. 7:26A.

CHAPTER 26A. RECYCLING RULES

SUBCHAPTER 1. GENERAL PROVISIONS

7:26A-1.1 Scope and authority

(a) Unless otherwise provided by rule or statute, this chapter shall constitute the rules of

the Department governing the operation of recycling centers and the conduct of

recyclable materials generators and transporters, and of governing municipalities and

counties that have jurisdiction over recyclable materials pursuant to the Solid Waste

Management Act, N.J.S.A. 13:1E-1 et seq., particularly the New Jersey Statewide

Mandatory Source Separation and Recycling Act, N.J.S.A. 13:1E-99.11 et seq. This

chapter also includes the Department’s electronic waste recycling program rules

regarding the recycling of a used covered electronic device, pursuant to the

Electronic Waste Management Act, N.J.S.A. 13:1E-99.94 et seq.


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(b) through (e) (No change.)

7:26A-1.3 Definitions

The following words and terms, when used in this chapter, shall have the

meanings set forth below. All terms which are used in this chapter and which are not

defined herein but which are defined in N.J.A.C. 7:26 shall have the same meanings as in

that chapter. If any of the words or terms defined below or at N.J.A.C. 7:26 are

defined differently at N.J.A.C. 7:26A-13.2, the definitions at N.J.A.C. 7:26A-13.2

will apply to the use of those words or terms in N.J.A.C. 7:26A-13.

NOTE: Because the following proposed new subchapter 13 is all new, the

Department has not set it in bold font, as there is no existing text from which to

differentiate it.

SUBCHAPTER 13. ELECTRONIC WASTE RECYCLING

7:26A-13.1 Scope and authority

This subchapter implements the “Electronic Waste Management Act,” N.J.S.A.

13:1E-99.94 et seq., to establish a recycling system for the safe and environmentally

sound management of covered electronic devices and components, including televisions,

and establishes requirements for manufacturers and retailers of these covered electronic

devices. This subchapter applies to manufacturers, retailers and consumers of covered

electronic devices, as well as to collectors, transporters and authorized recyclers whose

services are engaged under the manufacturers’ collection plans.

7:26A-13.2 Definitions

The following words and terms, when used in this subchapter, shall have the

meanings set forth below. Any term used in this subchapter that is not defined herein but

that is defined in N.J.A.C. 7:26 or 7:26A-1.3 shall have the same meaning as in that

chapter or section. If any of the words or terms defined below are defined differently at


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N.J.A.C. 7:26 or at N.J.A.C. 7:26A-1.3, the definitions at N.J.A.C. 7:26A-13.2 will apply

to the use of those words or terms in N.J.A.C. 7:26A-13.

“Authorized recycler” means a person not currently committed to a jail, prison, or

other institution for the detention of persons charged with or convicted of an offense,

who:

1. Engages in the manual or mechanical separation of covered electronic devices

to recover components and commodities contained therein for the purpose of re-

use or recycling; or

2. Changes the physical or chemical composition of a covered electronic device

by deconstructing, reducing the size, crushing, cutting, sawing, compacting,

shredding, or refining, for the purpose of segregating components and for the

purpose of recovering or recycling those components, and who arranges for the

transport of those components to an end user.

“Brand” means a symbol, word, or mark that identifies a covered electronic device. A

symbol, word or mark that identifies only a component of a covered electronic device,

and not the covered electronic device as a whole, is not the brand of the covered

electronic device unless the device as a whole is so identified.

“Brand list” means, for a manufacturer of covered electronic devices, including

televisions, a list of every brand under which the covered electronic devices

manufactured by the manufacturer are sold, regardless of whether the manufacturer

owns or licenses the brand.

“Business concern” means any corporation, association, firm, partnership, sole

proprietorship, trust or other form of commercial organization. “Business concern”

shall not include a small business enterprise.

“Cathode ray tube” means a vacuum tube or picture tube used to convert an electronic

signal into a visual image.


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“Collection obligation” means the return share in weight or the television collection

share in weight identified for an individual manufacturer.

“Collection plan” or “plan” means a plan for collecting, transporting, and recycling

covered electronic devices prepared pursuant to N.J.S.A. 13:1E-99.96e and 99.103a,

and this subchapter.

“Collector” means a facility specified in a manufacturer’s approved collection plan

that receives and accumulates covered electronic devices prior to their transportation

to an authorized recycler. Collector includes, but is not limited to, a recycling depot,

a solid waste transfer station or materials recovery facility, a solid waste sanitary

landfill, a universal waste handler, a Class D recycling center, a retailer, or any other

entity specified in a manufacturer’s approved collection plan.

“Computer” means an electronic, magnetic, optical, electrochemical, or other high-

speed data processing device that is designed to perform a logical, arithmetic, or

storage function, and may include both a computer central processing unit and a

monitor. “Computer” includes, but is not limited to, a personal, desktop, portable or

laptop computer, but does not include an automated typewriter or typesetter, a

portable handheld calculator, a portable digital assistant, or other similar device.

“Consumer” means a person, other than a business concern, who purchases a covered

electronic device in a retail sale.

“Covered electronic device” means a portable, desktop or personal computer,

computer monitor or television sold to a consumer. A “covered electronic device”

does not mean any of the following:

1. An electronic device that is a part of a motor vehicle or any component part of

a motor vehicle assembled by, or for, a vehicle manufacturer or franchised dealer,

including a replacement part for use in a motor vehicle;


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2. An electronic device that is functionally or physically a part of a larger piece of

equipment designed and intended for use in an industrial, commercial, or medical

setting, including diagnostic, monitoring, or control equipment;

3. An electronic device that is contained within a clothes washer, clothes dryer,

refrigerator, refrigerator and freezer, microwave oven, conventional oven or

range, dishwasher, room air conditioner, dehumidifier, or air purifier; or

4. A telephone of any type, unless it contains a video display area greater than

four inches, measured diagonally.

“Gross television recycling goal” means the overall television collection goal

established by the Department for each program year, expressed in pounds, or pounds

per capita, determined in accordance with N.J.A.C. 7:26A-13.9(d).

“Local government unit” means any county or municipality, or any agency,

instrumentality, authority or corporation of any county or municipality, including, but

not limited to, sewerage, utilities and improvement authorities, or any other political

subdivision of the State.

“Manufacturer” means any person:

1. Who manufactures or manufactured covered electronic devices under a brand

that it owns or owned or is or was licensed to use, other than a license to

manufacture covered electronic devices for delivery exclusively to or at the order

of the licensor;

2. Who sells or sold covered electronic devices manufactured by others under a

brand that the seller owns or owned or is or was licensed to use,

3. Who manufactures or manufactured covered electronic devices without

affixing a brand;


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4. Who manufactures or manufactured covered electronic devices to which it

affixes or affixed a brand that it neither owns or owned nor is or was licensed to

use;

5. On whose account covered electronic devices were manufactured outside the

United States and were imported into the United States, unless, at the time of

importation, another person has registered as the manufacturer of the brand of the

covered electronic devices pursuant to N.J.S.A. 13:1E-99.102b; or

6. Who assumes the obligations and responsibilities for a manufacturer.

“Market share” means a television manufacturer’s national sales of televisions,

expressed as a percentage of the total of all television manufacturers’ national sales,

based on the best available public data.

“Monitor” means a separate video display component of a computer containing a

cathode ray tube or any other type of display, including, but not limited to, a liquid

crystal display, gas plasma, digital light processing, or other image projection

technology, that:

1. Is sold separately or sold together with a computer central processing unit and

computer box; and

2. Includes its case, the interior wires and circuitry, the cable to the central

processing unit and the power cord.

“Orphan device” means a covered electronic device for which no manufacturer can be

identified, or for which the original manufacturer no longer exists.

“Portable computer” means a computer with a video display greater than four inches

in size that can be carried as one unit by an individual, and includes a laptop

computer.

“Program year” means a full calendar year, running from January 1st through

December 31 of each year, beginning on January 1, 2011.


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“Purchase” means the taking, by sale, of title in exchange for consideration.

“Recycling” means any process by which materials that would otherwise become

solid waste are collected, separated or processed, and returned to the economic

mainstream in the form of raw materials or products. “Recycling” does not include

energy recovery or energy generation by means of incinerating electronic waste,

whether apart from or in combination with other wastes.

“Retail sale” means the sale of covered electronic devices through sales outlets, via

the Internet, mail order, or other means, whether or not the retailer has a physical

presence in this State.

“Retailer” means a person who owns or operates a business that sells new covered

electronic devices in this State by any means to a consumer.

“Return share” means the proportion of covered electronic devices other than

televisions that an individual manufacturer of covered electronic devices other than

televisions is responsible to collect, transport, and recycle, as determined by the

Department pursuant to N.J.A.C. 7:26A-13.9.

“Return share in weight” means the total weight of an individual manufacturer’s

return share.

“Sale” or “sell” means any transfer of title for consideration, including, but not

limited to, transactions conducted through sales outlets, catalogs, or the Internet, or

any other, similar electronic means, and excluding leases.

“Small business enterprise” means any business that has its principal place of

business in this State, is independently owned and operated, and employs the

equivalent of fewer than 50 full-time employees.

“Television” means a stand-alone display system containing a cathode ray tube or

any other type of display that:

1. Is primarily intended to receive video programming via broadcast;


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2. Has a viewable area greater than four inches measured diagonally;

3. Can display standard consumer video formats, receive and display different

broadcast channels and support sound capability; and

4. Includes its case, the interior wires and circuitry, the cable to the central

processing unit and the power cord.

“Television collection share” means the proportion of televisions that an individual

manufacturer is responsible to collect, transport, and recycle, as determined by the

Department pursuant to N.J.A.C. 7:26A-13.9.

“Television collection share in weight” means the total weight of an individual

television manufacturer’s television collection share.

“Television manufacturer” means a manufacturer of televisions offered for sale for

delivery in New Jersey.

“Transporter” means a person engaged in the transportation of covered electronic

devices, off the collection site, by any means, including by air, rail, highway, or

water.

“Vendor-to-business-purchaser recycling arrangement” means an arrangement between a

business concern that purchases or leases a covered electronic device and the

manufacturer of the device, whereby the manufacturer, for an additional fee or otherwise,

commits to accept for recycling the purchased or leased covered electronic device when

the business determines that it no longer has use for the device.

“Video display” means an output surface having a viewable area greater than four

inches when measured diagonally that displays moving graphical images or a visual

representation of image sequences or pictures, showing a number of quickly changing

images on a screen in fast succession to create the illusion of motion, including, if

applicable, a device that is an integral part of the display and cannot be easily

removed from the display by the consumer and that produces the moving image on

the screen. A “video display” typically uses a cathode ray tube, liquid crystal display,

gas plasma, digital light processing, or other image projection technology.


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7:26A-13.3 Registration requirements for manufacturers of covered electronic devices

(a) This section applies to television manufacturers and manufacturers of all other

covered electronic devices.

(b) Each manufacturer shall register with the Department by submitting a registration

package as set forth at (c) below, as follows:

1. Each television manufacturer shall register with the Department by January 1,

2010;

2. Each manufacturer of a covered electronic device other than a television shall

register with the Department by February 1, 2010; and

3. On or before January 1, 2011, and by every subsequent January 1st, each registered

manufacturer shall renew its registration with the Department by submitting a

registration package as set forth at (c) below.

(c) To register or renew its registration, a manufacturer shall submit, in accordance with

N.J.A.C. 7:26A-13.5, a registration package that includes:

1. A completed registration form, available at the Department’s website at

http://www.nj.gov/dep/dshw/recycling/ElectronicWaste/ewastemanufacturers.html;

2. A registration fee of $5000.00;

3. A current brand list; and

4. The following written certification:

“I certify under penalty of law that I have personally examined and am familiar

with the information submitted in this document and all attachments and that,

based on my inquiry of those individuals immediately responsible for obtaining

the information, I believe that the information is true, accurate, and complete. I

am aware that there are significant penalties for submitting false information,

including the possibility of fine and imprisonment. I certify further that no

covered electronic device manufactured under the above-listed brands that are

offered for sale in New Jersey are prohibited from being sold or offered for sale in


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the European Union on or after its date of manufacture due to the concentration of

one or more heavy metals in the covered electronic device exceeding its

maximum concentration value, as specified in the Commission of European

Communities’ Decision of August 18, 2005, amending Directive 2002-95-EC

(European Union document 2005-618-EC), or as specified in a subsequent

amendment to the Directive, except as otherwise provided at N.J.A.C. 7:26A-

13.7(d).”

The certification shall be signed as follows:

i. For a corporation, by a principal executive officer of at least the level of vice

president; or

ii. For a partnership or sole proprietorship, by a general partner or the proprietor,

respectively.

(d) A registered television manufacturer that determines to cease selling televisions in

New Jersey shall, at least 30 days before it does so, advise the Department, in writing, of

the date on which it will cease selling televisions in New Jersey.

(e) Off-cycle registration is required of manufacturers as follows:

1. Any television manufacturer not previously required to register with the

Department as of the commencement of any registration year shall submit a

registration package in accordance with (c) above within 30 days after beginning to

sell televisions in New Jersey.

2. Any manufacturer to whom the Department provides a notification of a return

share and a return share in weight pursuant to N.J.A.C. 7:26A-13.9 who has not

previously registered with the Department shall submit a registration package in

accordance with (c) above within 30 days of receiving return share notification from

the Department.

7:26A-13.4 Collection plan submission requirements


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(a) By September 30, 2010 and by June 1 of each subsequent year, each television

manufacturer and each manufacturer for which the Department identifies a return share in

weight that is greater than zero shall, either individually or as part of a group of television

manufacturers or a group of manufacturers of covered electronic devices other than

televisions, submit a collection plan to the Department. A collection plan submitted on

behalf of a group must also identify the group, its membership and contact person, as

provided at (e) below. The collection plan must provide for recycling resources and

capacity sufficient to address the collection obligation of the manufacturer or group of

manufacturers, as determined by the Department pursuant to N.J.A.C. 7:26A-13.9, and

must otherwise conform with N.J.A.C. 7:26A-13.6. An individual manufacturer’s

collection plan must provide for the collection, transportation, and recycling of the

individual manufacturer’s collection obligation. A collection plan submitted by a group

of manufacturers must provide for the collection, transportation, and recycling of the sum

of the collection obligation of each participating manufacturer.

(b) With each collection plan submitted pursuant to (a) above, each manufacturer or

group of manufacturers shall submit an annual report to the Department that includes the

following:

1. For a television manufacturer or group of television manufacturers:

i. The total number of all new televisions manufactured by each television

manufacturer that were sold in New Jersey in the previous program year; and

ii. Beginning with the collection plan submitted by June 1, 2012, the total weight

of televisions collected for recycling in the previous program year pursuant to the

collection plan; and

2. For a manufacturer or group of manufacturers of covered electronic devices other

than televisions, beginning with the collection plan submitted by June 1, 2012, the

total amount by weight of covered electronic devices other than televisions collected

for recycling in the previous program year pursuant to the collection plan.


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(c) On or before January 1, 2011, each manufacturer or group of manufacturers shall

implement, at its own expense, its plan for the collection, transportation, and recycling of

covered electronic devices.

(d) A manufacturer shall continue to carry out the collection program as set forth in the

approved plan for the entire program year, even if that manufacturer meets or exceeds its

collection obligation before the end of the program year.

(e) A manufacturer that chooses to submit a collection plan and an annual report as part

of a group, shall, at least 30 days prior to the submittal of each group collection plan,

participate in the preparation and submission to the Department of a Group Designation

Form, which is available on the Department’s website at

http://www.nj.gov/dep/dshw/recycling/ElectronicWaste/ewastemanufacturers.html. The

group of manufacturers shall use the Group Designation Form to provide the following

information:

1. A name identifying the group;

2. The name, title, telephone number, email address and mailing address of the

group’s contact person, to whom the Department should address all communication

regarding the submission of the collection plan and the annual report and whom the

group has authorized to act on its behalf; and

3. For each manufacturer participating in the group, its name, the program interest

number assigned to it when it initially registered with the Department, and the name

of the manufacturer’s contact person.

Each manufacturer’s contact person and the group’s contact person will sign and certify

the veracity of the information contained in the Group Designation Form and all

attachments thereto.

7:26A-13.5 Submission and certification of required documents and payments

(a) A manufacturer shall submit the required completed registration form, collection

plan, annual report, and registration or registration renewal fee payment as follows:


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1. If, at the time of submission, the Department’s web-based registration system is

available, the manufacturer shall submit the required documents, including the annual

reports and collection plans, and, except as provided at (a)3 below, the registration fee

or registration renewal fee payment, by means of the web-based electronic method

listed at http://www.njdeponline.com. The date of the web-based submission can be

documented by printing the appropriate website confirmation screen;

2. If, at the time of submission, the Department’s web-based registration system is

not available, (except for a temporary unavailability), the manufacturer shall submit

the required documents, including the annual reports and collection plans, and, except

as provided at (a)3 below, the registration fee or registration renewal fee payment, by

sending a copy on a compact disc (CD) in portable document format (PDF) or any

equivalent format as approved of by the Department, via the postal service, a delivery

service, or other commonly accepted method of delivery, to the address listed on the

registration form. The date of the submission of the completed registration form,

collection plan, annual report, and registration fee payment can be documented by

submitting the documents in a way that will provide documentation of the submittal

date, such as by certified mail; and

3. Until such time as the electronic payment component of the Department’s web-

based registration system is operational, the registration fee shall be paid via check or

money order payable to "Treasurer, State of New Jersey” and submitted with the

registration form. Once the Department has developed the capability to accept

payment electronically, the registration fee shall be paid by means of the web-based

electronic method listed at http://www.njdeponline.com. The date of the web-based

electronic payment can be documented by printing the appropriate web-based

registration system confirmation screen.

4. Each registration form shall be certified in accordance with N.J.A.C. 7:26A-

13.3(c)4.

7:26A-13.6 Required contents of a collection plan; confidentiality; review of plans


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(a) A collection plan submitted in accordance with N.J.A.C. 7:26A-13.4 shall include the

following:

1. The methods and services that will be used to collect used covered electronic

devices, including, but not limited to:

i. The locations, including addresses, of the collection sites to be utilized. The

collection plan must provide for at least one collection site in every county in the

State, unless the plan provides documentation that the county for which the plan

does not provide collection coverage is already adequately covered by the

collection plan of another manufacturer, group of manufacturers or other entity;

ii. Each collection site’s hours of operation;

iii. A description of how each collection site will be staffed and secured;

iv. A listing of any limitations to be imposed on the quantity and type of material

to be accepted, and whether any additional electronic equipment not required to

be collected under the Electronic Waste Management Act will be accepted (for

example, DVD players, VCRs, scanners, printers, or other computer and

television peripherals and equipment);

v. A description of the collection methods to be utilized for sensitive populations;

that is, consumers who cannot physically get to a collection site without

assistance;

vi. A description of the collection methods to be employed for heavy (50 pounds

in weight or heavier) and/or unwieldy covered electronic devices, including, but

not limited to, flat screen televisions with screens greater than 40 inches measured

diagonally and projection televisions;

vii. A description of how the collected covered electronic devices will be stored

prior to transport to an authorized recycler;

viii. Certification that any covered electronic device may be dropped off at the

collection site by a consumer free of charge;

ix. An explanation of the extent to which, if any, there is coordination with

county and municipal government recycling programs;


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x. A description of the methods to be used to ensure that personal information

contained on hard drives or similar data storage devices is secured from access by

the general public and any untrained persons or employees; and

xi. Certification that the parties with which the manufacturer or group of

manufacturers has contracted under the collection plan to provide collection and

recycling services, including the transportation of material from the collection site

to an authorized recycler, are compliant with all applicable requirements of

N.J.A.C. 7:26A-13.12;

2. The processes and methods that will be used to recycle collected covered

electronic devices, including:

i. The names and locations of the authorized recyclers to which collected covered

electronic devices will be transported. The collection plan must also include

copies of any permits issued by the state in which the recycler is located and a

certification executed by the recycler stating that the recycler is aware of and has

agreed to comply with the requirements of this subchapter. For an authorized

recycler located in a state other than New Jersey, a letter from the appropriate

regulatory agency of the state where the authorized recycler is located verifying

that the facility is operating in accordance with all applicable rules and regulations

must be included in the collection plan;

ii. A description of the recycling processes that will be used by the authorized

recyclers;

iii. The processes and methods that will be used, if any, to recycle collected

covered electronic devices, other than televisions, that are the subject of any

vendor-to-business-purchaser recycling arrangements into which the manufacturer

has entered; and

iv. Certification that no collected covered electronic device has been handled in a

manner that would violate N.J.A.C. 7:26A-13.7(f), which prohibits sending a

collected covered electronic device to a detention institution as described more

fully therein;


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3. A description of the means that will be utilized to publicize the collection services,

including a website or toll-free telephone number that provides information about the

manufacturer’s recycling program in sufficient detail to inform a consumer how to

return covered electronic devices for recycling, including any limitations placed by

collectors on the number of covered electronic devices permitted for drop-off by

consumers;

4. A detailed explanation of how the manufacturer intends to fulfill its obligation,

through its own operations, either individually or with other registered covered

electronic device manufacturers, or by contract with for-profit or not-for-profit

corporations, or local government units, including a commitment to provide for the

collection of all types and all brands of covered electronic devices, including orphan

devices. This explanation shall include, at a minimum, the anticipated collection

amounts for each collection site;

5. The following certification:

“I certify under penalty of law that I have personally examined and am familiar with

the information submitted in this document and all attachments thereto, and that,

based on my inquiry of those individuals immediately responsible for obtaining the

information, I believe that the information is true, accurate, and complete. I am aware

that there are significant penalties for submitting false information, including the

possibility of fine and imprisonment.”

The certification shall be signed as follows:

i. For a corporation, by a principal executive officer of at least the level of vice

president; or

ii. For a partnership or sole proprietorship, by a general partner or the proprietor,

respectively; and

6. Certification that each manufacturer that is party to the collection plan is in

compliance with N.J.S.A. 13:1E-99.101, which prohibits the sale or offer for sale in

New Jersey of a new covered electronic device that is prohibited from sale in the

European Union based on the excessive presence of heavy metals in the product,

unless the covered electronic device is exempted from this prohibition under N.J.S.A.


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13:1E-99.111(2)(a). For any covered electronic device exempted under N.J.S.A.

13:1E-99.111(2)(a), the manufacturer will include certification that the covered

electronic device would have been in compliance with European Union standards for

heavy metals, but for the inclusion of a substance in order to comply with the

consumer, health or safety requirements of the Underwriters Laboratories or Federal

or State law.

(b) The Department will hold confidential any information obtained in connection with a

collection plan submitted pursuant to (a) above upon a showing by the manufacturer that

the information, if made public, would divulge competitive business information,

methods or processes entitled to protection as trade secrets of the registered

manufacturer. A manufacturer asserting confidentiality shall submit its claim by

following the procedures at N.J.A.C. 7:26-17.3.

(c) If a manufacturer asserts a claim of confidentiality pursuant to N.J.A.C. 7:26-17.3

for any part of a collection plan, it must submit two copies of its collection plan – one

that omits the confidential information, and includes only the information for which no

claim of confidentiality is being made, and a second that includes all the required

collection plan information, including the information for which a claim of

confidentiality is being made. The manufacturer shall certify both of these submittals.

(d) The Department will review each manufacturer’s collection plan or plan jointly

submitted by a group of manufacturers in accordance with proposed new N.J.A.C. 7:26A-

13.10. The Department may reject the collection plan, in whole or in part, and may

impose additional requirements as a condition of approval. A collection plan that is

deemed to be administratively complete by the Department will be considered as

“pending approval” for the purposes of compliance with N.J.A.C. 7:26A-13.7. Upon

completion of a technical review, the Department will make a final determination to

either reject or approve the collection plan.

7:26A-13.7 Prohibitions on the sale and disposition of all covered electronic devices


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(a) No manufacturer shall sell or offer for sale a covered electronic device in New Jersey,

unless the manufacturer complies with all financial and other requirements of this

subchapter, including all conditions and terms of an approved plan or a plan for which

approval is pending pursuant to N.J.A.C. 7:26A-13.6(d), and N.J.S.A. 13:1E-99.94 et seq.

(b) Beginning on January 1, 2010, a manufacturer or retailer of a covered electronic

device shall not sell or offer for sale a covered electronic device in New Jersey unless the

covered electronic device is labeled with the manufacturer’s brand, and the label is

permanently affixed to the device in such a way as to ensure that the brand is readily

visible without removing or disassembling any portion of the device.

(c) Beginning on January 1, 2011, no person shall sell or offer for sale in New Jersey a

new covered electronic device from a manufacturer unless the manufacturer has a

collection plan that has been approved by the Department or for which approval is

pending, and the manufacturer is otherwise in compliance with the requirements of this

subchapter.

(d) Beginning on January 1, 2011, no person shall sell or offer for sale in New Jersey a

new covered electronic device that is prohibited from being sold or offered for sale in the

European Union on or after its date of manufacture because it contains one or more heavy

metals in a concentration that exceeds the maximum concentration value specified in the

Annex to the European Union Directive 2002/95/EC, as supplemented or amended and

incorporated by reference herein, and available at http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2002L0095:20080524:EN:PD

F, unless the exceedance of the heavy metal maximum concentration value results from

the inclusion of a substance in order to comply with the consumer, health, or safety

requirements of the Underwriters Laboratories, or with Federal or State law.

(e) A seller of new covered electronic devices can ensure compliance with (c) and (d)

above by consulting the compliance list established by the Department and posted on its

website. A seller has complied with (c) and (d) above if, on the date that the covered

electronic device was ordered from the manufacturer or its agent, the manufacturer was


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listed as being in compliance on the Department’s website or the website indicates that

approval is pending for that manufacturer.

(f) No person shall, pursuant to any collection plan, send a collected covered electronic

device to a jail, prison, or other institution for the detention of persons charged with or

convicted of an offense, for the purpose of recycling, including manual or mechanical

separation to recover components and commodities contained therein for re-use or

recycling, either directly or through intermediaries, and nothing in this subchapter shall

be construed to allow for the recycling of covered electronic devices by prisoners.

(g) On and after January 1, 2011, no person shall knowingly dispose of a used covered

electronic device, or any of its components or subassemblies, as solid waste.

7:26A-13.8 Educational requirements for retailers of covered electronic devices

(a) The Department will develop information that it will provide to retailers describing

where and how to recycle the covered electronic devices they sell, and where and how

consumers can drop off the covered electronic devices for collection or return.

(b) Every retailer shall provide the information described at (a) above, using one or more

of the following methods:

1. A toll-free telephone number and website;

2. Information included in the packaging for the covered electronic device; or

3. Information provided accompanying the sale of the covered electronic device.

7:26A-13.9 Collection obligation determination

(a) Each year the Department will determine the collection obligation for each

manufacturer of covered electronic devices, to be used for the following program year.


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(b) The Department will calculate the collection obligation for each manufacturer of

covered electronic devices other than televisions, by August 4, 2010, March 1, 2011, and

March 1, 2012 for program years 2011, 2012 and 2013, using the following data and

steps:

1. In 2010 and 2011, only, the Department will collect data from the Brand Data

Management System (BDMS) developed by the National Center for Electronics

Recycling (NCER), which is available at

http://www.electronicsrecycling.org/BDMS/default.aspx, concerning the number and

weight of covered electronic devices other than televisions, including brand

identification, if provided, collected from consumers in collections held throughout

the United States;

2. In 2012, the Department will complete a sampling of covered electronic devices,

other than televisions, collected from consumers in New Jersey during the previous

program year (2011) in accordance with the protocol set forth in (c)2 below;

3. The Department will use the data collected pursuant to (b)1 and 2 above to:

i. Generate a list of brands and the weight of covered electronic devices other

than televisions that are identified for each brand;

ii. Assign each identified brand to the appropriate manufacturer; and

iii. Determine the total weight of orphan devices;

4. Using the data collected at (b)3 above, the Department will calculate the return

share of each manufacturer as follows:

R = cb

a

x 100

Where:

R = return share expressed as a percentage;

a = the total weight of all of an individual manufacturer’s brands;


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b = the total weight of all collected covered electronic devices, other than

televisions; and

c = the total weight of collected orphan devices;

5. The Department will project the total weight in pounds of covered electronic

devices other than televisions that will be collected in New Jersey from consumers

during the 2011, 2012 and 2013 program years by multiplying the per capita

collection rate for the Washington State e-waste program in 2009, 2010, and 2011,

respectively, by the most recent estimated New Jersey population, as determined by

the United States Census Bureau. For 2009, the Washington State per capita

collection rate is 2.3 pounds and the New Jersey population is 8.7 million; and

6. The Department will determine the collection obligation of each manufacturer by

calculating its return share by weight as follows:

RW = R x TW

Where:

RW = return share in weight expressed in pounds;

R = return share expressed as a percentage, calculated at (b)3 above; and

TW = total weight in pounds of covered electronic devices other than

televisions projected to be collected in New Jersey from consumers during the

program year to which the return share in weight will apply, determined at

(b)4 above.

(c) For the 2014 program year and each subsequent program year, the Department will

calculate the collection obligation for each manufacturer of covered electronic devices

other than televisions, using the following data and steps:

1. By January 30, 2013, and every January 30 thereafter, the Department will

complete a sampling of covered electronic devices other than televisions collected

from consumers in New Jersey during the previous program year in accordance with

the protocol set forth in (c)2 below;


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2. Sampling will be conducted at a minimum of six randomly selected collection

sites, at least three of which will be located in Northern New Jersey and at least three

of which will be located in Southern New Jersey. At each site, a minimum of 200

units of covered electronic devices other than televisions will be sampled to

determine the brand and weight of each sampled device;

3. The Department will use the data collected pursuant to (c)1 and 2 above to:

i. Generate a list of brands and the weight of covered electronic devices other

than televisions that are identified for each brand;

ii. Assign each identified brand to the appropriate manufacturer; and

iii. Determine the total weight of orphan devices;

4. The Department will calculate the return share of each manufacturer as follows:

R = cb

a

x 100

Where:

R = return share expressed as a percentage;

a = the total weight of all of an individual manufacturer’s brands;

b = the total weight of all collected covered electronic devices, other than

televisions; and

c = the total weight of collected orphan devices;

5. The Department will project the total weight in pounds of covered electronic

devices other than televisions that will be collected in New Jersey from consumers

during the following program year by calculating the sum of the weight in pounds of

covered electronic devices other than televisions reflected in the most recently

submitted manufacturers’ annual reports; and


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6. Using the return shares calculated in (c)4 above, the Department will determine

the collection obligation for each manufacturer for which a return share is determined

by calculating its return share by weight as follows:

RW = R x TW

Where:

RW = return share in weight, expressed in pounds;

R = return share, expressed as a percentage, calculated at (c)4 above; and

TW = total weight in pounds of covered electronic devices other than

televisions collected in New Jersey from consumers during the most recent

program year for which the Department has data, as determined at (c)5 above.

(d) The Department will determine the collection obligation for each manufacturer of

televisions using the following data and steps:

1. By June 1, 2010, and by February 1 of every year thereafter, the Department will

purchase national market share data from a firm that has expertise in gathering market

share sales data in the electronics sector, in particular, the television market. The

Department will purchase sales data for the most recent 12-month period available for

purchase at the time concerning televisions, including brand identification, sold to

consumers throughout the United States;

2. The Department will use the market share data purchased in accordance with (d)1

above to:

i. Generate a list of brands of televisions and the number of televisions that are

identified for each brand; and

ii. Assign each identified brand to the appropriate television manufacturer;

3. The Department will calculate the television collection share of each manufacturer

as follows:


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S= b

a x 100

Where:

S = television collection share, expressed as a percentage;

a = the total units sold of all of an individual manufacturer’s brands; and

b = the total units sold of all brands;

4. The Department will determine the gross television recycling goal for the 2011,

2012 and 2013 program years by multiplying the per capita collection rate from the

Washington State e-waste program in 2009, 2010 and 2011, respectively, by the

most recent estimated New Jersey population, as determined by the United States

Census Bureau. For 2009, the Washington State per capita collection rate is 3.3

pounds and the New Jersey population is 8.7 million. For the fourth program year,

(2014), and every program year thereafter, the Department will determine the gross

television recycling goal for the following program year by calculating the sum of the

weight in pounds of televisions reflected in the most recently submitted

manufacturers’ annual reports; and

5. The Department will determine the collection obligation of each manufacturer by

calculating its television collection share by weight as follows:

CW = S x GW

Where:

CW = television collection share in weight, expressed in pounds;

S = television collection share expressed as a percentage, calculated at (d)3

above; and

GW = the gross television recycling goal in pounds to be collected in New

Jersey from consumers during the program year to which the return share in

weight will apply, determined at (d)4 above.


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(f) By August 15, 2010, and by every March 1 thereafter, the Department will publish on

its website and provide to each identified manufacturer, a Preliminary Collection

Obligation Report. The Preliminary Collection Obligation Report will set forth the

collection obligation of each identified manufacturer, including, as appropriate, the return

share or television collection share for each of its brands, and the total return share or

television collection share thereof. The Preliminary Collection Obligation Report will

also include supporting data, such as the results of the sampling conducted by the

Department pursuant to (c)1 above.

(g) By August 30, 2010, by every April 1 thereafter, a manufacturer may comment on

the collection obligation or any supporting data provided in the Preliminary Collection

Obligation Report by submitting comments to the Department at the following address:

New Jersey Department of Environmental Protection

Solid and Hazardous Waste Management Program

Bureau of Recycling and Planning

401 East State Street

P.O. Box 414

Trenton, New Jersey 08625-0414.

Support for an alternative collection obligation shall include:

1. A detailed explanation of the grounds for the alternative collection obligation;

2. An alternative calculation;

3. The basis for the alternative calculation. If the alternative collection obligation is

not based on the results of the Department’s sampling, the basis for the alternative

calculation of the return share shall include a report documenting the sampling

conducted by the manufacturer in accordance with (c)2 above;

4. Documentary evidence supporting an alternative collection obligation; and

5. Complete contact information for requests for additional information and

clarification.


27

(h) The Department will review any collection obligation comments received pursuant to

(g) above and will, by October 15, 2010 and by every May 1 thereafter, publish a Final

Collection Obligation Report. The Final Collection Obligation Report will include the

final collection obligations and a summary of any comments received and the

Department’s response to the comments.

7:26A-13.10 Review of collection plans

(a) The Department will review every submitted plan for the collection of covered

electronic devices to ensure the plan includes all the information required pursuant to

N.J.A.C. 7:26A-13.6, and that implementation of the plan could reasonably be expected

to result in the recycling of the collection obligation.

(b) In reviewing the collection plans, the Department will ensure that at least one

electronics collection opportunity is available in each county throughout the State and in

such a manner as to be convenient, to the maximum extent practicable and feasible, to all

consumers in a given county.

(c) The Department will ensure that collectors do not place unreasonable limits on the

number of covered electronic devices permitted for drop-off by consumers.

(d) No fees or costs may be charged to consumers for the collection, transportation, or

recycling of covered electronic devices in accordance with any plan under these rules.

(e) After the Department reviews a manufacturer’s collection plan it will issue a letter,

either requesting additional information or determining the plan to be administratively

complete. A collection plan is administratively complete if it contains all of the

information required in N.J.A.C. 7:26A-13.6(a). If the Department requests additional

information, the manufacturer shall submit the additional information within 30 days of

receipt of the request.

(f) Upon the Department’s determination that a collection plan is administratively

complete, the Department will perform a technical review to determine if the plan fulfills

the intent of the Electronic Waste Management Act and the requirements at (b), (c) and


28

(d) above and this subchapter. Upon completion of the technical review, the Department

will issue a letter either requesting additional information or approving or rejecting the

plan. If the Department requests additional information, the manufacturer shall submit

the additional information within 30 days of receipt of the request.

(g) Failure to timely and fully respond to a request for additional information shall

constitute a failure to provide a plan in violation of this subchapter and the Electronic

Waste Management Act.

7:26A-13.11 Performance requirements for collectors, transporters, and authorized

recyclers

(a) A collector, transporter, or authorized recycler of covered electronic devices who is

participating in a manufacturer’s or group of manufacturers’ approved collection plan

shall comply with the EPA’s “Plug-In to eCycling Guidelines for Materials

Management,” incorporated herein by reference and available at

http://www.epa.gov/waste/partnerships/plugin/pdf/guide.pdf.

(b) In addition to the requirements at (a) above, a collector of covered electronic devices

participating in a manufacturer’s or group of manufacturers’ approved collection plan

shall comply with New Jersey’s Universal Waste Handler rules at N.J.A.C. 7:26A-7.4

and 7.5.

(c) In addition to the requirements at (a) above, a transporter of covered electronic

devices participating in a manufacturer’s or group of manufacturers’ approved collection

plan shall comply with New Jersey’s Universal Waste Transporter rules at N.J.A.C.

7:26A-7.6.

(d) In addition to the requirements at (a) above, an authorized recycler shall comply with

“Responsible Recycling (R2) Practices for Use in Accredited Certification Programs for

Electronics Recyclers,” as supplemented or amended and incorporated herein by

reference, which is available at

http://www.epa.gov/waste/conserve/materials/ecycling/r2practices.htm, or another third

party certification as approved by the Department. An authorized recycler of covered


29

electronic devices shall also comply with the requirements for Class D recycling facilities

at N.J.A.C. 7:26A-3 et seq. An authorized recycler of covered electronic devices located

in a state other than New Jersey shall also comply with the receiving state’s rules and

regulations, including any requirements for the maintenance of any permit or approval.

7:26A-13.12 Fees and penalties

Any person who violates the provisions of this subchapter or the provisions of the

Electronic Waste Management Act is subject to a penalty of not less than $500.00 nor

more than $1000.00 for each offense, to be collected in a civil action by a summary

proceeding under the “Penalty Enforcement Law of 1999,” (N.J.S.A. 2A:58-10 et seq.),

or in any case before a court of competent jurisdiction wherein injunctive relief has been

requested. If the violation is of a continuing nature, each day during which it continues

constitutes an additional, separate, and distinct offense.

7:26A-13.13 Appeal procedure

(a) A party that believes it is aggrieved with respect to the following decisions made by

the Department may appeal the decision within 20 calendar days after the date of the

decision and request an administrative hearing:

1. Any term of a collection plan approval; or

2. Disapproval of a collection plan, or any part thereof.

(b) Requests for an administrative hearing shall be submitted to:

Office of Legal Affairs

ATTENTION: Adjudicatory Hearing Requests

Department of Environmental Protection

401 East State Street, PO Box 402

Trenton, New Jersey 08625-0402

and to:


30

New Jersey Department of Environmental Protection

Solid and Hazardous Waste Management Program

Bureau of Recycling and Planning

401 East State Street, 2nd floor, East Wing

PO Box 414

Trenton, New Jersey 08625-0414

(c) All requests for an administrative hearing shall be submitted in writing to the

Department and shall contain:

1. The name, address and telephone number of the person making the request;

2. A statement of the legal authority and jurisdiction under which the request for a

hearing is made;

3. A brief and clear statement of the Department decision being appealed, indicating

the specific grounds for the applicant's appeal;

4. A statement of all facts alleged to be at issue and their relevance to the Department

decision for which a hearing is requested. Any legal issues associated with the alleged

facts at issue must also be included; and

5. All information supporting the request or other written documents relied upon to

support the request, unless this information is already in the administrative record (in

which case, such information shall be specifically referenced in the request).

(d) A hearing request not received by the Department within 20 calendar days after the

date of the Department decision being appealed will be denied by the Department.

(e) If the applicant or interested party fails to include all the information required by (c)

above, the Department may deny the hearing request.

(f) Following receipt of a complete request for a hearing pursuant to (c) above, the

Department may attempt to informally settle the dispute by conducting such proceedings,

meetings and conferences as deemed appropriate.


31

(g) If the Department determines that the matter is a contested case, the Department will

file the request for an administrative hearing with the Office of Administrative Law.

Such hearings will be conducted in accordance with the provisions of the Administrative

Procedure Act, N.J.S.A. 52:14B-1 et seq. and N.J.S.A. 52:14F-1 et seq. and the Uniform

Administrative Procedure Rules 1:1. In making such determination, the Department will

evaluate the request to determine whether a contested case exists and whether there are

issues of fact which, if assumed to be true, might change the Department's decision.

Where only issues of law are raised by a request for a hearing, the request will be denied.

Denial by the Department of a request for a contested case hearing shall constitute the

final decision of the Department for the purposes of judicial appeal.

Documents

WORKING DRAFT – October 15, 2010